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CLJ Bulletin, Issue 2017, Vol 5
02 February 2017


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New This Week

1. Case(s) of the Week

  1. MALAYAN BANKING BHD v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR [2017] 2 CLJ 70

2. Latest Cases

  1. Legal Network Series

  2. CLJ 2017 Volume 2 (Part 1)

3. Articles

  1. LNS Article(s)

4. Legislation Highlights

  1. Principal Acts

  2. Amending Acts

  3. PU(A)

  4. PU(B)

  5. Legislation Alert


CASE(S) OF THE WEEK

MALAYAN BANKING BHD v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR [2017] 2 CLJ 70
HIGH COURT MALAYA, PULAU PINANG
COLLIN LAWRENCE SEQUERAH JC
[JUDICIAL REVIEW NO: 25-69-09-2015]
17 OCTOBER 2016

CIVIL PROCEDURE: Judicial review - Certiorari - Application to quash award by Industrial Court - Employment on fixed term contract inclusive of probationary period - Employee not confirmed by employer - Industrial Court awarded back wages of 12 months with rescaling of 20% for post-dismissal earnings - Whether employee terminated with just cause and excuse - Whether award appropriate - Whether there was reviewable error by Industrial Court

LABOUR LAW: Employment - Dismissal - Employee employed on fixed term contract inclusive of probationary period - Employee not confirmed by employer due to incompetency - Whether employee dismissed with just cause and excuse - Whether probationer on fixed term contract entitled to back wages of unexpired portion of fixed term contract - Whether entitled to 12 months back wages - Discretion of Industrial Court in rescaling percentage for post-dismissal earnings - Industrial Relations Act 1967


LATEST CASES

Legal Network Series

[2015] 1 LNS 1188

JETSON LUCKSOON SDN BHD v. CHA TI @ CHEAH TAI & ORS

COMPANY LAW: Act of officers - Fiduciary duties - Director and general manager - Allegation of breach of fiduciary obligation to company - Director and general manager made payment to sub-contractor to ensure obligations under various contracts were carried out and to avoid delay in completing project - Whether director and general manager had acted in interest of company - Whether director and general manager had acted with intention of meeting contractual obligations of company - Whether there was breach of fiduciary duty to company - Whether there was conflict of duty and interest

[2015] 1 LNS 1192

DATO' ONG TEE THONG v. SRI PUTRAMAS JOINT MANAGEMENT BODY

CONTRACT: Construction of terms of contract - Interpretation - Word 'termination' and 'cancellation' in contract - Absence of definition in contract - Intention of parties - Whether such words would have to be interpreted according to their ordinary meaning as given in Oxford English Dictionary - Whether meaning of words has to be determined by constructing relevant clauses within context of contract and by ascertaining intention of contracting parties - Whether word 'termination' was synonym to word 'cancellation'

[2015] 1 LNS 1195

DYNAWELL CORPORATION (M) SDN BHD v. DYNASTY LANDMARK SDN BHD & ANOR

INTELLECTUAL PROPERTY: Registration - Refusal of registration - Appeal against decision of registrar of trade marks in refusing to register trade mark 'DYNASTY' after allowing objection raised by registered proprietor of trademark 'DYNASTY HOTEL' pursuant to ss. 14 and 19 of Trade Marks Act 1976 - Failure to specify any particular ground to challenge decision of registrar - Whether registrar had applied correct approach for comparison of two marks

INTELLECTUAL PROPERTY: Registration - Objection - Registration of trade mark 'DYNASTY' - Objection raised by registered proprietor of trademark 'DYNASTY HOTEL' - Objection raised pursuant to ss. 14 and 19 of Trade Marks Act 1976 - Confusion and deception - Both marks used in hotel industry - Whether plaintiff's mark 'DYNASTY' was confusingly similar to first defendant's mark 'DYNASTY HOTEL' - Whether there would be any likelihood of confusion - Whether plaintiff's trademark was substantially similar to first defendant's trademark - Whether service of plaintiff and first defendant was in direct competition - Whether plaintiff was a honest concurrent user of identical trade mark

[2016] 1 LNS 23

KUALA LUMPUR SENTRAL SDN BHD lwn. MALAKOFF UTILITIES SDN BHD; PLAZA SENTRAL JOINT MANAGEMENT BODY & SATU LAGI (PENCELAH)

PROSEDUR SIVIL: Saksi - Perlantikan pakar mahkamah - Pakar bebas - Mahkamah diletakkan dalam keadaan dilema untuk menentukan faktor imbangan - Perlantikan jurutera struktur untuk melaporkan kepada mahkamah berkenaan keselamatan kerja penambahan menara penyejukan di blok bangunan - Penentuan berkenaan tahap bebanan penambahan menara - Pandangan pakar bebas diperlukan dalam usaha menentukan pemberian injunksi - Sama ada pandangan seorang pakar bebas dapat membantu mahkamah dalam usahanya mencapai keputusan jitu yang adil - Kaedah-Kaedah Mahkamah 2012, A. 40

[2016] 1 LNS 125

MOHD ROZALI ABD RAHMAN lwn. ROSLI ADBUL WAHAB & YANG LAIN

PROSEDUR SIVIL: Tindakan - Penukaran - Permohonan penukaran tindakan saman pemula kepada writ saman - Tindakan saman pemula untuk pecah bahagian - Defendan-defendan sebagai tuan tanah berdaftar yang lain mempertikaikan kesahihan jual beli antara plaintif dengan pemilik sebelumnya - Tindakan plaintif tidak mengurangkan bahagian-bahagian defendan terhadap hartanah - Sama ada permohonan defendan untuk penukaran tindakan saman pemula kepada writ saman wajar dibenarkan

UNDANG-UNDANG TANAH: Pecah bahagian - Pemilikan bersama - Tuan tanah berdaftar yang lain membantah pengukuran dan persempadanan tanah - Plaintif merupakan pemilik berdaftar sebahagian hartanah yang dipindahkan kepadanya dari beberapa pemilik yang sebelumnya - Tuan tanah berdaftar yang lain mempertikaikan hak pemilikan tanah oleh plaintif dan kesahihan perjanjian jual beli antara plaintif dengan pemilik sebelumnya - Proses jual beli antara plaintif dan pemilik terdahulu tidak melibatkan bahagian defendan-defendan - Sama ada plaintif mempunyai kepentingan terhadap bahagian pemilikannya dan berhak memohon untuk pengukuran dan persempadanan hartanah - Sama ada defendan-defendan mempunyai hak untuk mempersoalkan kesahihan jual beli hartanah plaintif


CLJ 2017 Volume 2 (Part 1)

FEDERAL COURT

Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor
Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali FCJJ, Balia Yusof Wahi JCA
(Revenue Law - Income tax - Withholding tax - Assessment of - Whether income derived from royalty payments) [2017] 2 CLJ 1 [FC]

Zen Courts Sdn Bhd v. Bukit Jalil Development Sdn Bhd & Ors
Suriyadi Halim Omar, Abu Samah Nordin, Azahar Mohamed, Balia Yusof Wahi, Aziah Ali FCJJ
(Company Law - Valuation - Sale of shares - Allegation of minority oppression - Order for buy-out shares) [2017] 2 CLJ 32 [FC]

COURT OF APPEAL

Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA
(Land Law - Indefeasibility of title and interest - Fraud - Sale and purchase of land - National Land Code, s. 340) [2017] 2 CLJ 43 [CA]

HIGH COURT

Malayan Banking Bhd v. Mahkamah Perusahaan Malaysia & Anor
Collin Lawrence Sequerah JC
(Civil Procedure; Labour Law - Judicial review - Certiorari - Application to quash award by Industrial Court) [2017] 2 CLJ 70 [HC]

Matu Tugang (Suing For And On Behalf Of Himself & 42 Ors) v. Shin Yang Forestry Sdn Bhd & Ors
Rhodzariah Bujang J
(Land Law; Native Law And Custom - Land dispute - Customary rights over land - Claim for) [2017] 2 CLJ 82 [HC]

Teoh Ching Hwa v. Mohd Nor Arif Ahmad & Anor And Another Case
Yeoh Wee Siam J
(Road Traffic; Damages - Negligence - Road accident - Liability - Ascertainment of) [2017] 2 CLJ 107 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Judicial review - Certiorari - Application to quash award by Industrial Court - Employment on fixed term contract inclusive of probationary period - Employee not confirmed by employer - Industrial Court awarded back wages of 12 months with rescaling of 20% for post-dismissal earnings - Whether employee terminated with just cause and excuse - Whether award appropriate - Whether there was reviewable error by Industrial Court
Malayan Banking Bhd v. Mahkamah Perusahaan Malaysia & Anor
(Collin Lawrence Sequerah JC) [2017] 2 CLJ 70 [HC]

COMPANY LAW

Shares - Valuation - Sale of shares - Allegation of minority oppression - Order for buy-out shares - Valuation report prepared by mutually agreed valuer - Application by minority shareholders seeking representations be made on valuation report - Whether cross-examination of valuer in relation to valuation report permitted - Whether buy-out order would be varied - Whether buy-out order good, valid and intact - Companies Act 1965, s. 181
Zen Courts Sdn Bhd v. Bukit Jalil Development Sdn Bhd & Ors
(Suriyadi Halim Omar, Abu Samah Nordin, Azahar Mohamed, Balia Yusof Wahi, Aziah Ali FCJJ) [2017] 2 CLJ 32 [FC]

DAMAGES

Appeal - Appeal against quantum - Road accident - Motorcyclist hitting pedestrian crossing street - Whether awards given to pedestrian exorbitant - Whether pedestrian entitled to award for EPF - Whether pedestrian paid wages as defined under s. 2 of Employees Provident Fund Act 1991 - Whether award for speech therapy should be included in medical costs - Award for total loss of future earnings - Whether reasonable and ought to be maintained
Teoh Ching Hwa v. Mohd Nor Arif Ahmad & Anor And Another Case
(Yeoh Wee Siam J) [2017] 2 CLJ 107 [HC]

LABOUR LAW

Employment - Dismissal - Employee employed on fixed term contract inclusive of probationary period - Employee not confirmed by employer due to incompetency - Whether employee dismissed with just cause and excuse - Whether probationer on fixed term contract entitled to back wages of unexpired portion of fixed term contract - Whether entitled to 12 months back wages - Discretion of Industrial Court in rescaling percentage for post-dismissal earnings - Industrial Relations Act 1967
Malayan Banking Bhd v. Mahkamah Perusahaan Malaysia & Anor
(Collin Lawrence Sequerah JC) [2017] 2 CLJ 70 [HC]

LAND LAW

Charge - Indefeasibility of interest - Title to land obtained by fraud - Whether charge of land tainted by fraud - Whether chargee was subsequent purchaser - Whether chargee was purchaser for good consideration and without notice - Whether protected by deferred indefeasibility under s. 340 of National Land Code
Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA) [2017] 2 CLJ 43 [CA]

Customary land - Right to - Whether Penans of Long Jaik used area claimed for livelihood and sustenance before 1 January 1958 - Whether Penans of Long Jaik the only foragers of area - Whether longhouse belonging to Penans of Long Jaik mentioned in schedule of Belaga Protected Forest notification - Whether inequitable and unjust to grant declaration of native customary rights - Whether rights of inhabitants of other longhouses would be obliterated - Whether usufructuary rights of named beneficiaries violated - Failure to prove exclusive possession of area claimed - Whether Penans of Long Jaik discharged burden of proof
Matu Tugang (Suing For And On Behalf Of Himself & 42 Ors) v. Shin Yang Forestry Sdn Bhd & Ors
(Rhodzariah Bujang J) [2017] 2 CLJ 82 [HC]

Indefeasibility of title and interest - Fraud - Sale and purchase of land - Denial by original owners of sale of land - Whether title obtained by fraud - Whether immediate purchaser protected against claim by original owner - Whether purchaser's title to land defeasible - National Land Code, s. 340
Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA) [2017] 2 CLJ 43 [CA]

Indefeasibility of title and interest - Transfer - Title to land obtained by fraud - Land sold to subsequent purchaser - Undertaking by vendor to refund in event of failure to effect transfer - Whether complete lack of consideration - Whether refund ought to be ordered
Heveaplast Marketing Sdn Bhd v. See Leong Chye & Ors And Other Appeals
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA) [2017] 2 CLJ 43 [CA]

NATIVE LAW AND CUSTOM

Land dispute - Customary rights over land - Claim for - Whether Penans of Long Jaik used area claimed for livelihood and sustenance before 1 January 1958 - Whether Penans of Long Jaik the only foragers of area - Whether longhouse belonging to Penans of Long Jaik mentioned in schedule of Belaga Protected Forest notification - Whether inequitable and unjust to grant declaration of native customary rights - Whether rights of inhabitants of other longhouses would be obliterated - Whether usufructuary rights of named beneficiaries violated - Failure to prove exclusive possession of area claimed - Whether Penans of Long Jaik discharged burden of proof
Matu Tugang (Suing For And On Behalf Of Himself & 42 Ors) v. Shin Yang Forestry Sdn Bhd & Ors
(Rhodzariah Bujang J) [2017] 2 CLJ 82 [HC]

REVENUE LAW

Income tax - Withholding tax - Assessment of - Assessment based on both ss. 109 and 109B of Income Tax Act 1967 - Whether assessment void for want of form - Whether income derived from royalty payments - Whether Director General of Income Tax (`DGIR') acted in excess of powers conferred by ITA - Whether decision-making process by DGIR flawed - Whether there was withholding of tax
Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali FCJJ, Balia Yusof Wahi JCA) [2017] 2 CLJ 1 [FC]

Income tax - Withholding tax - Notice of assessment by Director General of Income Tax (`DGIR') - Whether subject to appeal to Special Commissioners of Income Tax - Failure to appeal despite being aggrieved by decision of DGIR - Whether amounted to failure to rebut deeming provisions - Whether DGIR statutorily bound to withhold payment as tax - Income Tax Act 1967, ss. 4(d), 4A, 109 & 109B
Ketua Pengarah Hasil Dalam Negeri v. Alcatel-Lucent Malaysia Sdn Bhd & Anor
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Zainun Ali, Ramly Ali FCJJ, Balia Yusof Wahi JCA) [2017] 2 CLJ 1 [FC]

ROAD TRAFFIC

Negligence - Road accident - Liability - Ascertainment of - Motorcyclist hitting pedestrian crossing street - Witness' police report lodged one hour after accident a contemporaneous document compared to motorcyclist's police report lodged eight days after accident - Evidence showed motorcyclist running away after hitting pedestrian - Whether motorcyclist more blameworthy than pedestrian - Liability of 20% to pedestrian and 80% to motorcyclist - Whether affirmed
Teoh Ching Hwa v. Mohd Nor Arif Ahmad & Anor And Another Case
(Yeoh Wee Siam J) [2017] 2 CLJ 107 [HC]


ARTICLES

LNS Article(s)

  1. IS COMMERCIAL ARBITRATION THE FUTURE OF COMMERCIAL JUSTICE?* [Read excerpt]
    by: THE RT HON LADY JUSTICE ARDEN DBE [2017] 1 LNS(A) x

  2. [2017] 1 LNS(A) x
    logo
    UNITED KINGDOM

    IS COMMERCIAL ARBITRATION THE FUTURE OF COMMERCIAL JUSTICE?*
    by
    THE RT HON LADY JUSTICE ARDEN DBE

    The arbitration world is, I understand, flourishing in Australia. There has been an increase in the use of commercial arbitration and Australia is becoming an ever more popular location for cross-border dispute resolution by arbitration. The pro-arbitration approach of Australian law, and the very high standards of its judiciary and observance of the rule of law, have assisted in this development.

    Some states have a panel of specialist judges and also a dedicated arbitration list which enables them to offer a quick turn around and a consistent and high quality service to litigants.

    In addition, Australian courts have adopted a restrictive interpretation of the public policy ground for refusal of enforcement of a foreign award. The High Court of Australia has held that enforcement of an award is not to be refused by the courts simply because the court has not satisfied itself as to the correctness of the award (TCL Air Conditioner (Zhongshan) Co Ltd v. Castel Electronics Pty Ltd).[1] The conceptual basis for this conclusion is significant. Crucially the High Court concluded that enforcement of an award does not mean enforcement of rights and obligations imposed by the general law but of rights and obligations created by the parties' agreement, which have merged into an award. In a liberal democracy, the courts allow parties to set up their own regime of rights and obligations.

    . . .

    * ©THE RT HON LADY JUSTICE ARDEN DBE, The London 2016 International And Commercial Law Conference (London, June 2016). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.gov.uk/wp-content/uploads/2016/07/lj-arden-speech-arbitration.pdf).


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  3. BACKDATED COVERNOTES AND THE INSURERS' LIABILITY
    UNDER SECTION 96 OF THE ROAD TRANSPORT ACT 1987
    [Read excerpt]
    by: S. SANTHANA DASS* [2017] 1 LNS(A) xi

  4. [2017] 1 LNS(A) xi
    logo
    MALAYSIA

    BACKDATED COVERNOTES AND THE INSURERS' LIABILITY
    UNDER SECTION 96 OF THE ROAD TRANSPORT ACT 1987

    by
    S. SANTHANA DASS*

    Motor car No. XXX (the insured vehicle) meets with an accident with motorcycle No. YYY at 9.00am on 30/9/2015. As a result of the accident, the motorcyclist suffers serious injuries. The insured vehicle did not have insurance cover or road tax at the time of the accident. The insured subsequent to the accident, sees an insurance agent of insurer A who issues a cover note wherein it is stated that the period of insurance is 30/9/2015 to midnight of 29/9/2016. The time of issue of the cover note and/or payment of the premiums for the cover is after the time of the accident.

    Is insurer A liable to meet the judgment sum awarded in favour of the motorcyclist under Section 96(1) of the Road Traffic Act 1987 (RTA)?

    The issue for consideration is whether a policy that was not in existence at the time of accident and issued by the insurer only after the accident, but by its terms covers the date of accident, is unenforceable or void under Section 96(3)? Where only the date of the commencement of cover is mentioned in the cover note, is cover retrospective to cover the time of the time of the accident?

    . . .

    * Advocate & Solicitor


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 786 Asian Infrastructure Investment Bank Act 2017 This Act comes into operation on the date the Agreement comes into operation for the Government of Malaysia pursuant to Article 58 of the Agreement -
ACT 785 Finance Act 2017 The Income Tax Act 1967 [Act 53] see s 3; The Petroleum (Income Tax) Act 1967 [Act 543] see s 30; The Real Property Gains Tax Act 1976 [Act 169] see s 34; The Labuan Business Activity Tax Act 1990 [Act 445] see s 37; The Goods and Services Tax Act 2014 [Act 762] see s 40 -
ACT 784 Scouts Association of Malaysia (Incorporation) Act 1968 (Revised 2016) 17 November 2016 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2016; First enacted in 1968 as Act of Parliament No 38 of 1968; First Revision - 1989 (Act 409 wef 14 December 1989) -
ACT 783 Statutory Declarations Act 1960 (Revised 2016) 17 November 2016 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2016; First enacted in 1960 as Act No 20 of 1960; First Revision - 1969 (Act No 13 wef 14 April 1970) -
ACT 782 Forest Research Institute Malaysia Act 2016 1 October 2016 -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1525 Emblems and Names (Prevention of Improper Use) (Amendment) Act 2017 Not Yet In Force ACT 414
ACT A1524 Births and Deaths Registration (Amendment) Act 2017 Not Yet In Force ACT 299
ACT A1523 Administration of Islamic Law (Federal Territories) (Amendment) Act 2017 1 February 2017 [PU(B) 67/2017] ACT 505
ACT A1522 Town and Country Planning (Amendment) Act 2017 Not Yet In Force ACT 172
ACT A1521 Criminal Procedure Code (Amendment) Act 2016 Not Yet In Force ACT 593

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 46/2017 Money Services Business (Exemption) Order 2017 31 January 2017 1 January 2017 ACT 731
PU(A) 45/2017 Islamic Financial Services (Exemption) Order 2017 31 January 2017 1 January 2017 ACT 759
PU(A) 44/2017 Financial Services (Exemption) Order 2017 31 January 2017 1 January 2017 ACT 758
PU(A) 43/2017 Passports (Visa To The Citizen of The Republic of Sudan) (Exemption) Order 2017 31 January 2017 1 February 2017 ACT 150
PU(A) 42/2017 Pineapple Industry (Cess On Export) (Revocation) Order 2017 27 January 2017 1 February 2017 ACT 427

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 68/2017 Notification of Values of Crude Petroleum Oil Under Section 12 31 January 2017 2 February 2017 to 15 February 2017 ACT 235
PU(B) 67/2017 Appointment of Date of Coming Into Operation 31 January 2017 1 February 2017 ACT A1523
PU(B) 66/2017 Appointment of Registrar 27 January 2017 Specified in column (2) for the States specified in column (3) of the Schedule ACT 685
PU(B) 65/2017 Appointment of Authorized Officers 27 January 2017 8 May 2016 ACT 506
PU(B) 64/2017 Appointment of Authorized Officers 27 January 2017 8 May 2016 ACT 308

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 459/1998 Free Zones (Exclusion of Goods and Services) Order 1998 PU(A) 39/2017 1 February 2017 Schedule
ACT 206 Arms Act 1960 (Revised 1978) PU(A) 41/2017 1 February 2017 Second Schedule
ACT 438 Free Zones Act 1990 PU(B) 60/2017 1 February 2017 First Schedule
ACT 197 Registration of Businesses Act 1956 (Revised 1978) ACT A1476 31 January 2017 [PU(B) 54/2017] Sections 2, 3, 9, 10 and 14
ACT 614 Companies Commission of Malaysia Act 2001 ACT A1478 20 February 2015 [PU(B) 45/2015] except sections 9, 10, 11, 13, 14 and 15; 31 January 2017 - s. 9, 10, 11, 13, 14 and 15 [PU(B) 52/2017] Sections 9, 10, 11, 13, 14 and 15

Revoked

Act/Principal No. Title Revoked by In force from
PU(B) 27/2015 Appointment and Revocation of Appointment of Registrar of Credit Reporting Agencies PU(B) 463/2016 16 March 2016
PU(A) 61/2010 Federal Roads (Private Management) (Collection of Tolls) (Kajang-Seremban Highway) Order 2010 PU(A) 264/2016 19 October 2016
PU(A) 79/2002 Communications and Multimedia (Rates) Rules 2002 PU(A) 185/2016 1 July 2016
PU(A) 196/2003 Market (Federal Territory of Putrajaya) By-Laws 2003 PU(A) 254/2016 11 October 2016
PU(B) 99/2014 Notice of Affirmative Final Determination of An Anti-Dumping Duty Investigation With Respect to Imports of Cellulose Fibre Reinforced Cement Flat and Pattern Sheets Originating Or Exported From the Kingdom of Thailand PU(B) 401/2016 8 September 2016